Archive for June 2013

As revelations about the NSA’s spying programs continue to surface America’s surveillance state continues to grow from local and state nodes. While a series of leaks by former US intelligence contractor Edward Snowden exposed secret NSA programs that intercepted phone records, emails, voice over IP and other forms of electronic communications used by Americans, the NSA is just one of dozens of intelligence and counterterrorism agencies. The surveillance state has an uncanny way of diffusing itself through non-federal channels.

After revelations by the 9/11 Commission that intelligence agencies at different levels were not “connecting the dots by sharing terrorism clues they had in their possession”, the Department of Homeland Security devised a new system to share intelligence between agencies. Fusion Centers were created to allow for the proper transmission of relevant terrorist and criminal information between all levels of intelligence and law enforcement. In effect, intelligence gathered on terrorists and criminals would be shared at the local, state and federal level. What feeds the Fusion Centers is a continual flow of raw information provided by local police departments, state police departments, private security firms and private sector business partners. Raw information includes everything from suspects license plate numbers, cell phone numbers, email addresses, social security numbers and video surveillance footage. The intelligence provided by all entities – local, state, federal and private – is then amalgamated and integrated into a vast database for analysis. According to a report by the US subcommittee last October titled “Federal Support for and Involvement in State and Local Fusion Centers”, 77 fusion centers were said to have been built between 2003 and 2007. That same report excoriated fusion centers citing financial waste, production of “irrelevant, useless or inappropriate intelligence” and severe lack of oversight that compromised constitutionally protected rights of American citizens.

If you flip to the back of yesterday’s Times, on page A-15 you will find an article discussing a lawsuit being brought against John J. Towery, a criminal intelligence analyst who worked with the Washington State Fusion Center to amass dossiers on anti-war protesters before funneling them into a domestic terrorism watchlist. Brendan Maslauskas Dunn, one of the plaintiffs in the case described to the Times in a previous piece how Towery worked undercover to infiltrate activist groups:“John Towery had an intimate knowledge of our personal lives, our relationships, our political beliefs, even actions we were planning…People Were followed. They were routinely harassed, detained and arrested.”

Another suit brought against the Boston Police Department and the Boston Regional Intelligence Center (BRIC) which serves as Massachusetts fusion center by the ACLU reveals that surveillance and intelligence officers have been gathering extensive information on peaceful protesters and political activists in the Boston area. Electronic records known as “intelligence reports” have been on file at BRIC since 2007. Despite department guidelines that require all intelligence that does not pertain to criminal activity to be destroyed in 90 days, BRIC maintained its files on non-criminals for as long as five years. Information on protesters and their activities is being collected by a consortium of local, state and federal officers. While no connection between the protest groups activities and criminal or terrorist conduct has been demonstrated intelligence amasses on dissenters. According to the ACLU report Policing Dissent: “the BRIC files list the non-violent actions of peace groups and activists under the heading “Criminal Act”, with labels such as “Extremists”, “Civil Disturbance” and “Home-Sec Domestic” in reports that track groups and people not engaged in crime but merely exercising their constitutional right to peaceful dissent.”

The problem with fusion centers and the NSA spying programs brought to light over the past several weeks is not that they try to intercept terrorist plots but that the sweeping authority they have been given at the local, state, and federal level to carry out blanket surveillance they ensnare citizens who have not been suspected of any wrong doing. Without vigilant oversight these centers are operating more and more as domestic surveillance entities with vast powers to track political dissidence. Although the NSA spying programs and Fusion Centers have been defended by surveillance state apologists as important tools in preventing terrorist attacks evidence abounds that these tools are being used against the people they are purportedly supposed to protect. Lynn Plante, Brendan Dunn and Jeffrey Berryhill can all attest to this.

Criminalizing assembly, labeling protesters as “domestic terrorists”, recording Americans phone calls and reading their emails, compiling data silos to detect aberrant behavior and implementing programs that require employees to monitor one another, silencing whistle blowers and prosecuting them under the Espionage Act are all part and parcel of a wayward surveillance system that knows no boundaries. The leaks revealing the extent to which the NSA monitors our activities cannot be viewed in isolation. As the NSA intercepts and aggregates staggering amounts of personal information, local authorities, state police, security firms and private sector partners work independently towards the same end. Secret surveillance programs are designed to assure that information flows in one direction only, away from those subjected to monitoring and towards the intelligence agencies, shady entities that are at once governmental and private. Ruling classes have understood the power of knowledge at least since Francis Bacon. With an endless array of surveillance technologies and spy programs at its disposal the surveillance state, the political and corporate class it protects will wield tremendous powers over individuals it has come to know everything about. When a government can extract your thoughts and monitor you behavior through surveillance, consolidate that information through databasing to establish a data profile that defines who you are in the eyes of national security and then disseminate information about you throughout an integrated network of authorities without you knowing, it’s only a matter of time before you think, say or post the wrong thing warranting closer scrutiny. And by then it’s too late because the algorithms have already passed their verdict. The file is opened and the investigation begins with your June 26, 2013 Google search for “Terrorism”.

During a speech last week at the American Constitution Society for Law and Policy National Convention, Massachusetts Senator Elizabeth Warren admonished her audience against the Chamber of Commerce’s growing influence on the Supreme Court. “Take a look at the win rate of the Chamber of Commerce,” “According to the Constitution Accountability Center, the chamber moved from a 43 percent win rate during the very conservative Berger court to a 56 percent win rate under the very conservative Rehnquist court. And now they are at a 70 percent win rate under the Roberts court.”

The Chamber of Commerce which fronts as the voice for American small business but operates as the largest anti-business/finance reform lobbying force in Washington has fought every Wall Street reform proposed since the financial collapse of 2008. Laws that would increase the transparency of executive compensation, make financial statements more reliable and accounting fraud more difficult to hide have all been fought by the Chamber’s team of lobbyists and millions of dollars contributed by CEOs from the largest corporations who want to keep their lobbying agenda secret.

In 2012 alone the Chamber of Commerce funneled over $100 million into the election campaigns of politicians who would do their bidding making the Chamber one of the biggest players in the money-access-power nexus that came to light during the 2012 Elections.

Other recent campaigns include the Chamber’s efforts to squash, and today, rollback regulations established under the Sarbanes-Oxley Act, a law passed in 2002 designed to enhance transparency and accounting standards for public company boards and public accounting firms in the wake of the Enron, Tyco and WorldCom scandals. Before his ouster from AIG in 2005, Maurice Greenberg diverted $23 million from the Starr Foundation bankrolling the Chamber in its push against regulations effected by Sarbanes-Oxley. Starr Foundation is one of the largest private foundations in the United States, a non-profit that funds research and education programs in a number of areas, “including education, medicine and healthcare, human needs, public policy, culture and the environment”. The Chamber’s decade-long anti-regulation campaign is really about limiting the control shareholders have over their executives, limiting corporate disclosures to investors, and protecting the secrecy of corporate boardrooms while preventing shareholders and the public from holding the same board rooms accountable.

Then there was the 2009 Chamber funded national ad blitzkrieg attacking the Affordable Health Care Act. The National Journal later revealed how deceitful of the Chamber’s ad campaign was when it reported that major insurers

including Aetna, Cigna, Humana, UnitedHealth Group and WellPoint had funneled between $10 million and $20 million to the U.S. Chamber to fund the campaign. Meanwhile, America’s Health Insurance Plans, the industry trade association, continued to public voice support for reform.

Another memorable 2009 campaign, one that put Elizabeth Warren in the cross hairs was the Chamber’s “Stop the Consumer Financial Protection Agency”. The Consumer Financial Protection Agency was conceived by Warren in a 2007 article she wrote in the Democracy Journal. Her idea was to create and agency that would have the authority and accountability to supervise, examine, and enforce consumer financial protection laws. The Chamber carried out an aggressive ad campaign featuring small business owners complaining that such an agency would crack down on small businesses that offer store credit to customers. Because of laws that do not require 501(c)3s like the Chamber to report donors the banks and credit card companies that financed the multi-million dollar ad and lobbying efforts were never disclosed.

Secrecy and anonymity are the trademark of the Chamber of Commerce. Ruling elites pay the non-profit hundreds of millions a year to secure the lucrative advantages they seek. But the drive for power is ceaseless within the ruling class. Nothing short of total control of all branches of the State will satisfy the appetites of those who wield power behind closed doors. The Chamber of Commerce and the corporations it represents from the shadows have already hijacked the legislative process, elections and government policy. It has already diffused its influence throughout “the least dangerous branch” as the increasing number of rulings favoring Big Business shows. Elizabeth Warren’s warning is prescient. Continuing her speech last week she said, “Follow this pro-business trend to its obvious conclusion and you will end up with a Supreme Court that’s a wholly owned subsidiary of the Chamber of Commerce.”

Here’s what we know: Secret kill lists, covert drone strikes, Authorization of the Use of Military Force and assassination, top secret NSA databases, warrantless wiretapping, trying whistle blowers under the Espionage Act, secret web spying, grand jury subpoenas and shadow courts, data vacuums, cyber warfare, direct call log access, information sharing between corporations and intelligence agencies, and the ballooning classifications that aim to keep these programs secret are all parts of Obama’s sprawling surveillance state. It’s frightening to think about the other tools we don’t know about that the Obama Administration is using. One thing is clear,with a vast arsenal of surveillance tools at its disposal the Administration is actively monitoring every one. We could all be Bradley Manning if we took “if you see something say something” to mean something more than reporting terrorists to intelligence hotlines. But a Washington Post-Pew Poll taken in the wake of the recent NSA leaks reveals 56 percent of those polled found it acceptable for the agency to get secret court orders to track the phone calls of millions of Americans. In times of fear and uncertainty passivity provides a false sense of security. Meanwhile the ruling elites dismantle the last vestiges of freedom as they move towards total social control.

The recent leaks about the NSAs direct access to phone subscribers metadata and web spying PRISM program shed further light on the inner workings of power. While every single phone call may not be eavesdropped on nor every email read, the capacity is there and the record of electronic correspondence made. Edward Snowden explained in an interview with Glenn Greenwald this past Sunday that he could tap the phone call of anyone including the President himself provided the targets email address. “Even if you are not doing anything wrong you are being watched and recorded,” he says.

And the storage capability of these systems increases every year, consistently, by orders of magnitude, to where it’s getting to the point you don’t have to have done anything wrong, you simply have to eventually fall under suspicion from somebody, even by a wrong call, and then they can use this system to go back in time and scrutinize every decision you’ve ever made, every friend you’ve ever discussed something with, and attack you on that basis, to sort of derive suspicion from an innocent life and paint anyone in the context of a wrongdoer.” This is what we’ve come to, the dystopic nightmare of the all powerful surveillance state.

There is no reason to suppose that such powers will be scaled back. In the eyes of the surveillance apparatus functionaries, the elected politicians who overwhelming support these “legal and limited” measures, the lack of public outrage justifies their use. Senators like Dianne Feinstein, Congressional leaders like Dick Durbin and John Boehner who have been outspoken defenders of the governments spying programs tout the age old argument that leaks of classified information embolden our enemies and threaten national security. But classifications are seldom used to protect national security. As if terrorists are unaware that the US government has been tapping their phone calls and tracking them for decades. We have government officials essentially saying people who are regularly pursued by drones, who likely have fought besides others who have wound up in black sites or worse Guantanamo had no idea that the U.S. could effectively monitor their activities. Here’s what director of national intelligence James Clapper had to say about the leaks:

It is literally—not figuratively, literally—gut-wrenching to see this happen, because of the huge, grave damage it does to our intelligence capabilities. And, of course, for me, this is a key tool for preserving and protecting the nation’s safety and security. So, every one of us in the intelligence community, most particularly the great men and women of NSA, are very—are profoundly affected by this.

Officials are insulting our intelligence in defending these invasive spy programs with such specious arguments.

As pressure within the administration mounts to repress leaks the motive behind the Administration’s secrecy couldn’t be clearer. Despite widespread claims that the Administration uses classifications only where necessary to protect national security, it is glaringly obvious that classifications are used to protect power and to keep the actions of officials secret so that the public cannot hold them accountable. The Administration will do anything in its power to make sure that information flows are a unilateral affair. How Snowden is dealt with from here on out will demonstrate just how far the US is willing to go in its war on whistle blowers.

With the overall lack of public outrage to shift Congressional views and the Administration’s pretense about welcoming an open debate on the balance between privacy and security (which amounts to a discussion about nothing because everything needed to be discussed is top secret) we can expect the attitude towards the rapid growth of the surveillance state to remain the same. Government spying on citizens will not be revealed for what it truly is -a radical effort to monitor and know the behavior and thoughts of everyone under its scope – as long as the reigning ideology that the government is our safe-keeper from the bad-scary-other prevails. As long as this remains the dominant discourse, all invasions into our private lives by the surveillance state will be in the words of our trusted ruler, little more than “modest encroachments on privacy”.

The NSA, the world’s largest intelligence agency and a central part of the United States military apparatus has received access to droves of civilian communications through its recently revealed PRISM program. Like many other top secret domestic surveillance programs, including Stellar Wind, and the FBI led Project Carnivore (now referred to as the Digital Collection System) that aim to vacuum up electronic data on people in the US, PRISM reveals itself as another powerful tool in the governments rapidly growing surveillance arsenal.

The NSA’s PRISM program functions as a “back door” through which the US government can directly access massive reserves of private data from partnership companies. The companies the NSA has partnered with to form PRISM are Microsoft, Facebook, Google, Yahoo, Skype, Paltalk, Youtube, AOL and just this past year Apple. These nine companies which make up the bulk of email, video, search engines, online communications in general, provide the US government with direct access to their servers. In other words the NSA can directly obtain information stored on the companies servers about anyone and conduct real-time data collection on targeted users. According to the Obama Administration with its radical interpretation of powers enumerated in the FISA Amendment this kind of probing is limited and legal. But a quick look at what the FISA Act of 1978 originally set out to accomplish shows how far we have drifted after two administrations from the legal confines of carrying out surveillance and how the criteria for selecting those targets has changed.

Senate Committee findings in the aftermath of the Watergate scandal where federal resources were discovered to have been used by the Nixon administration to spy on political activist groups prompted lawmakers to create judicial and congressional oversight of government surveillance activities while still providing intelligence agencies the secrecy needed to conduct investigations on “foreign powers” and Americans communicating with them. The idea was to strike a balance between intelligence agencies’ needs to intercept communications pertaining to plots to sabotage and attack the United States and US citizens’ constitutional rights to live free from unwarranted searches and seizures. For that reason Congress passed the FISA Act satisfying national security needs to undermine and intercept foreign plots while preserving civil liberties, in particular the right of US citizen to not have their communications eavesdropped on without a court warrant. For thirty years federal investigators would have to show probable cause to a FISA court (a special court of judges responsible for overseeing federal agents requests for surveillance warrants) that the “target of the surveillance is a foreign power or agent of a foreign power.” Intelligence agencies were emboldened by this law to carry out surveillance on actors subversive to US national security. Furthermore the FISA courts posed virtually no obstacle to intelligence agents seeking to obtain warrants. From the period 1979-2006 a total of 22,990 applications for warrants were made to the Court of which 22,985 were approved. In sum, FISA became primary tool for investigators to combat foreign threats and terrorism. The 2001 Patriot Act, Protect America Act of 2007 and the reviled FISA Amendments Act of 2008 changed all of this by vastly expanding the governments powers to conduct surveillance and increase the number of targets it could surveil. Today these are the legal justifications the Obama Administration is using to carry out its massive dragnet.

Last December’s debate about the renewal of the FISA Amendment ACT shed further light on the Administration’s expanding powers.Tthe ACLU published a policy paper that highlighted the constitutional concerns the Act raised. The NSA’s PRISM program makes the following eight concerns a concrete reality.

1. The law gives the government sweeping surveillance power without requiring it to identify the targets of its surveillance.
2. The law allows the government to intercept U.S. citizens’ and residents’ international telephone and email communications without having to identify the facilities, phone lines, email addresses, or locations to be monitored.
3. The law allows the government to conduct intrusive surveillance without meaningful judicial oversight.
4. The law places no meaningful limits on the government’s retention and dissemination of information relating to U.S. citizens and residents.
5. Nothing in the law prevents the government from compiling huge databases of foreign intelligence information and searching those databases later for information about U.S. citizens and residents.
6. The law does not limit government surveillance to communications relating to terrorism.
7. The law gives the government access to some communications that are purely domestic.
8. The law immunizes the telecoms that participated in the Bush administration’s warrantless wiretapping program.

So what are the implications of the US government having direct access to users data from the largest internet companies including Microsoft, Facebook, Google and Yahoo? While there are many three implications of the PRISM several things immediately stand out.

First and foremost it means that Americans who have absolutely nothing to do with terrorism and who pose no threat to national security are having their communications records stored for digital analysis and where deemed necessary for further analysis by intelligence specialists. The Wall Street Journal reported as far back as 2008 that the NSA receives “transactional data” from a variety of agencies and private companies so it can monitor ‘huge volumes of records of domestic emails and Internet searches as well as bank transfers, credit-card transactions, travel and telephone records.” When suspicious transaction patterns are detected by the NSA’s sophisticated dragnet software leads are spit out to counter terrorism agencies for investigation.

Second the broad sweeping powers of PRISM assure us that the communications of millions of individuals are being intercepted by the United States without warrants, in total secrecy and save the Obama Administration’s radical interpretation of executive authority so similar to that of his predecessor, in violation of the Constitution.

Third the cooperation of private companies with the NSA blurs any line that distinguishes private telecommunications and internet corporations as separate from the growing surveillance state. From Google to Apple, the nine companies participating in the NSA’s PRISM are complicit in providing services for and carrying out the functions of the the United State’s surveillance apparatus.

Fourth that a military/intelligence institution has become so heavily involved in intercepting and analyzing the private communications of individuals across digital networks suggests nothing but the militarization of communications infrastructure.

Finally in parsing through the private communications of millions of individuals who have no connection to terrorism and who are not suspected of having committed a crime the government is keeping record and analyzing the conversations of its citizenry. In this way it comes to know not only what kinds of terrorists plots are brewing but what it’s citizenry is talking about, thinking. This begs the question, why would a government want to know the thoughts of the governed and why would it want to hide the fact that it monitors their communications?